Category Archives: Court reporting

Post navigation

Analyzing how a given opinion has been impacted by subsequent decisions is an essential part of legal research. Consequently, the work of the Free Law movement cannot stop with making opinions freely available: a free and robust citator is also needed.

A gargantuan effort will be required to build (and continually update) such a citator. The newly launched WeCite Project, co-sponsored by the Stanford Center for Legal Informatics and the free legal research platform Casetext, aims to bring the win-win power of crowdsourcing to the task. Along with the traditional crowdsourcing strategy of enabling a community of like-minded people to easily contribute, the WeCite Project is also giving law schools the unique opportunity to do their fair share in another win-win way: students learn about citators and citation analysis; the database grows. Already a number of advanced legal research classes have already participated and our class this spring will join the crowd.

The Columbia Society for Law, Science and Technology is hosting a WeCite Event at Columbia Law School on March 26, 2014 (see details and RSVP here: https://casetext.com/wecite/event). Any and all who are passionate about legal research and/or equal access to the law are invited to attend. Those who cannot make it to New York can also participate remotely.

Importantly, any and all citator entries created under the WeCite Project (“wecites”) are public domain under a Creative Commons SA license. Casetext will also be creating an API to allow anyone to bulk download wecites.

The beauty of crowdsourcing is that small contributions from individuals can aggregate into something magnificent. For those who are interesting in pitching in, instructions can be found here: https://casetext.com/wecite

We here at Stanford are big fans of CourtListener. We use it to, among other things, identify recent cases that cite our faculty; those alerts come to us faster than those from some other services.

Stanford Law School alumnus, Legal Research Plus guest blogger and legal informatics visionary Pablo Arredondo has some news to share about CourtListener’s Free Law Project:

Brian W. Carver and Michael Lissner, creators of the CourtListener platform
and associated technology, are pleased to announce that after four years
developing free and open legal technologies, they are launching a
non-profit umbrella organization for their work: Free Law Project. Free Law
Project will serve to bring legal materials and research to the public for
free, formalizing the work that they have been doing, and providing a
long-term home for similar projects.

“Since the birth of this country, legal materials have been in the hands of
the few, denying legal justice to the many,” said Michael Lissner,
co-founder of the new non-profit. “It is appalling that the public does not
have free online access to the entirety of United States case law,” said
Brian Carver, UC Berkeley professor and Free Law Project co-founder. “We
are working to change this situation. We also provide a platform for
developing technologies that can make legal research easier for both
professionals and the general public.”

The official goals for the non-profit are:

* To provide free, public, and permanent access to primary legal
materials on the Internet for educational, charitable, and scientific
purposes;
* To develop, implement, and provide public access to technologies useful
for legal research;
* To create an open ecosystem for legal research and materials; and
* To support academic research on related technologies, corpora, and
legal systems.

The CourtListener platform was started in 2009 as part of a masters project
at UC Berkeley, and has matured over the years to be a powerful legal
research platform. It has nearly a million legal opinions dating from 1754,
and has more each day as it gets them directly from court websites.
CourtListener currently serves thousands of people with free legal opinions
each week, and has had a doubling of traffic just since July 2013.
CourtListener sends out hundreds of alerts to its users each week,
informing them of new legal cases in which they have expressed an interest.
All of CourtListener’s code is open source and all of its content is
available for free bulk download. Numerous startups and researchers have
used both the code and the bulk data as a basis for their work.

More information is available in [the Free Law Project about page][1],
where you can find a list of current activities and non-profit documents.
The co-founders expect to pursue grant funding from foundations, but also
hope that those who support the goals of improving public access to the law
will [donate directly][2] so that the non-profit can put more developers to
work on these efforts.

In the future, freelawproject.org will be the official place to find
updates about Free Law Project and its related technologies.

“This is a huge day for the open legal movement, and we hope you’ll help
share the news by telling your friends and colleagues,” said Lissner.

**Brian W. Carver** is Assistant Professor at the UC Berkeley School of
Information where he does research on and teaches about intellectual
property law and cyberlaw. He is also passionate about the public’s access
to the law. In 2009 and 2010 he advised an I School Masters student,
Michael Lissner, on the creation of CourtListener.com, an alert service
covering the U.S. federal appellate courts. After Michael’s graduation he
and Brian continued working on the site and have grown the database of
opinions to include over 900,000 documents.

**Michael Lissner** is the co-founder and lead developer of CourtListener,
a project that works to make the law more accessible to all. He graduated
from UC Berkeley’s School of Information. Michael is passionate about
bringing greater access to our primary legal materials, about how
technology can replace old legal models, and about open source,
community-driven approaches to legal research.

I start my day reading newspapers, and I especially enjoy the obituaries. Today’s New York Times includes an obituary for Jerry Finkelstein, publisher of the New York Law Journal, and the obit includes this observation:

In 1963, Mr. Finkelstein bought The Law Journal, the official paper of the city’s legal profession, for $1 million. Its circulation was small, and it was an ocean of tiny print: legal notices, case calendars, texts of decisions. But he turned it into a leading journal, and he wielded enormous power by deciding which cases to publish, in effect determining what the bar read — a leverage not lost on judges, lawyers and politicians.

We haven’t asked our students to buy a textbook in advanced legal research for a long time. The existing books are just too darn expensive. But a new book crossed my desk today that looks particularly useful for teaching legal research; it is: The Law of Superheroes (catalog record copied below).

This book starts with three pages explaining “Legal Sources and Citations” that explain legal citation about as well as anything I’ve seen. It also points the reader, presumably the lay reader, to sources of free law: Google Scholar for legal opinions; Cornell’s LII for the United States Code. Peter Martin is cited on page xiii, so this tells me the authors know their research!

Throughout the book are wonderful footnotes explaining, in the clearest language possible, different aspects of legal research. For example, footnote #4 on p. 113:

. . . Restatements of law are scholarly works that attempt to set forth the majority position on particular areas of law or recommended changes to the majority position. They mostly cover subjects that are still primarily common law rather than those based on legislation. The Restatements are not law themselves, but courts often find them persuasive, and many sections of various Restatements have been adopted as law by state courts.

The section on immigration (is Superman a citizen?) offers a great explanation of private laws:

Private Acts of Congress

There’s another way that someone can become a citizen without going through the immigration process: a “private act” of Congress, i.e., a law targeting a specific person and declaring him or her to be a citizen.[fn 9] Although unusual today, private acts have a long history in the United States.[fn10] . . . As a matter of fact, in at least one story, Superman is granted citizenship by every country in the world, presumably by their respective versions of a private act of Congress. . . .

9. . . . These bills are not very common, nor are they usually passed, but it happens.

10. In fact, for decades after the founding of the country, private acts by state legislatures were the only way for a legitimate 9i.e., non-annullable) marriage to be dissolved. Similarly, prior to the passage of general incorporation statutes, which create the procedures by which corporations may be chartered with state-level secretaries of state, creating a corporate entity required an act of the state legislature.

The sections on international and interplanetary law are really fun, and explain the very basics of “law” itself:

The important thing to remember about international law . . . is that international law is a matter of custom and practice as much as it is anything else. This is true of domestic law as well, and is really the reason the common law exists: a “law” is, essentially, a custom or tradition that is enforced by a government. In the case of common law that tradition is built up by the decisions of the courts. . . .

I may have more to add later, as I’m taking this book home with me for the Thanksgiving break.

Recently, we’ve had the opportunity to explore the online availability of state superior court filings, both through commercial retrieval services (such as Lexis’ CourtLink or Westlaw’s CourtExpress), and the superior courts’ own websites. Sites like Justia are also incredible resources for obtaining select trial court documents, but our project instead examined more standardized provision of dockets and filings.

Having wrapped up this undertaking, we thought it would be useful to share our reflections. First, a quick caveat about what this project did not involve. We were not comprehensively indexing document availability in every U.S. county, or even in all fifty states. Rather, we examined selected states and counties, based mainly on population size. In addition, though we are aware of various existing studies and compilations documenting the availability of state court records, we wanted to look behind some of these reports. As we often found, a commercial retrieval service’s representation that the “civil filings are available” did not mean all filings on all matters. Moreover, in a world of ever-changing court websites and eFiling programs, existing studies unfortunately have a somewhat limited shelf life.

So, with those disclaimers in mind, we are excited to share how floored we were by the disparities in the online provision of state court dockets and pleadings! Here are a couple of observations:

I. Commercial Services (e.g. CourtLink and CourtExpress)

Sometimes, one can get little for one’s money. The commercial services’ promotional materials are sometimes misleading if you want to retrievefilings. For instance, their coverage charts could indicate that dockets from Shawnee County, Kansas are available, but one can’t actually retrieve the dockets online; they are “available” only in the sense that one can make a request online (and pay additional money) to have a runner pull them from the court.

Another drawback was the infrequency with which commercial services updated their state trial court dockets. Even if one clicks a button to manually update a docket, this does nothing if one is attempting to do so within the long stretches between docket captures. (Commercial services capture docket snapshots only every 45 or 60 days, meaning that even if one tries updating in an intervening period, one really isn’t getting any newly-added information.)

We also found that, while commercial services often capture federal dockets and filings from PACER indiscriminately, their state court coverage is extraordinarily selective. They often choose cases based on subject matter cachet, or the perceived needs of their customers. If you want documents from a run-of-the-mill breach of contract case, you might be out of luck.

Don’t try this at home if you want to conduct empirical analysis! What isn’t available through commercial services significantly constrains research, but what hinders research even further is the inability to determine what isn’t available. How can one properly evaluate, for example, filings in a given jurisdiction when it is unclear what hasn’t been made available for searching?

II. Publicly-Available Court Websites

A trial court’s offering of documents online is not necessarily a question of whether the court sits in a county wealthy enough to provide them. For example, the superior court in Cincinnati, OH (sitting in Hamilton County) offers document access online, but San Diego County does not. And one can view civil dockets from Dallas, TX, but not from Denver, CO. There seems to be something other than wealth or the political inclinations of the jurisdiction at play. Perhaps it is a matter of prioritization by the state legislature or judiciary, or maybe even the serendipity of having companies nearby that can get databases up and running. Certainly, jurisdictions with well-established eFiling programs have a leg up on putting documents online; but, even in jurisdictions with eFiling in place, it is not always the case that dockets—let alone documents—can be retrieved on the Web!

The quality of available dockets varies dramatically because state court clerks exercise no uniformity in document description. It is difficult to compile a collection of complaints if various clerks label documents “pleading” or “misc. filing.”

Navigational problems can leave you lost at sea. We spent a lot of time fumbling our way around some of these sites. One wonders if it is truly “access” to records if one needs a vacation after trying to find them.

At the end of the day, we found too many gaps in coverage for anything to be considered “consistently” available online. One first step in measuring the parameters of these disparities would seem to be a county-by-countyanalysis of which trial courts in which states provide online access to dockets and/or filings—either through commercial services or their public websites. Surveys like the McCormick Tribune Foundation’s comprehensive 2007 assessment, or the commercial services’ coverage charts, are great first steps—but additional testing is required, particularly to keep such studies current.

Together with my Stanford Law School colleague George D. Wilson and our friend and Danish legal scholar Henrik Spang-Hanssen, we have just published the third edition of our legal research book, a revision of Legal Research Methods in the U.S. and Europe, 2nd Edition. But with the inclusion of short but good (in my opinion) chapters on legal research in China and Russia and some other materials, we have changed the title to Legal Research Methods in a Modern World: A Coursebook.

The book, now weighing in at 453 pages (and bargain priced at $ 55.00), is rich with illustrations and peppered with legal research tips. My contribution is mainly Chapter 5, about legal research methods in the United States, and it is based upon and follows the advanced legal research class that I co-teach here at Stanford. New to this edition, in addition to other updates, is the inclusion of research exercises that we have found most useful from the class. I did not include the answers — because I hope to continue to use these exercises — but I would be very happy to share the answers and my thoughts on approaches with other instructors of legal research.

The legal world is certainly getting smaller, and it is our shared belief that this would be handy book for any attorney to have as he or she deals with lawyers from other countries and their legal cultures.

In 2009, Arkansas ended publication of the Arkansas Reports. Since 1837 this series of volumes, joined in the late twentieth century by the Arkansas Appellate Reports covering the state’s intermediate court of appeals, had served as the official record of Arkansas’s case law. For all decisions handed down after February 12, 2009, not books but a database of electronic documents “created, authenticated, secured, and maintained by the Reporter of Decisions” constitute the “official report” of all Arkansas appellate decisions.

The article examines what distinguishes this Arkansas reform from the widespread cessation of public law report publication that occurred during the twentieth century and this new official database from the opinion archives now hosted at the judicial websites of most U.S. appellate courts. It proceeds to explore the distinctive alignment of factors that both led and enabled the Arkansas judiciary to take a step that courts in other jurisdictions, state and federal, have so far resisted. Speculation about which other states have the capability and incentive to follow Arkansas’s lead follows. That, in turn, requires a comparison of the full set of measures the Arkansas Supreme Court and its reporter of decisions have implemented with similar, less comprehensive, initiatives that have taken place elsewhere. Finally, the article considers important issues that have confronted those responsible for building Arkansas’s new system of case law dissemination and the degree to which principal components of this one state’s reform can provide a useful template for other jurisdictions.

The goal of the site is to create a free and competitive real time alert tool for the U.S. judicial system.

At present, the site has daily information regarding all precedential opinions issued by the 13 federal circuit courts and the Supreme Court of the United States. Each day, we also have the non-precedential opinions from all of the Circuit courts except the D.C. Circuit. This means that by 5:10pm PST, the database will be updated with the opinions of the day, with custom alerts going out shortly thereafter.

I just received a brochure from Lexis for its set of California Reports, and I intend to share it with our advanced legal research class.

From the blurb:

As the official publisher of the California Reports, LexisNexis is part of the court’s publishing process. LexisNexis editors work closely with the California Reporter of Decisions’ staff to meet all requirements for authenticity, integrity and accuracy. All opinions are checked, corrected and approved prior to publication in the official advance sheet — and again before the bound volumes are published. Plus all headnotes and case summaries are approved by the author of the opinion. . . .

A lot of work, to be sure. And there’s no doubt that West’s efforts are similar.

Like this:

Judges make decisions and write opinions. Some opinions get published and some do not. Unpublished opinions get unofficially published in West’s Federal Appendix and very often show up online. And on infrequent occasions some opinions find their way into LexisNexis but not Westlaw; others are found in Westlaw but not LexisNexis.

On December 21, 2009 Judge A. Howard Matz, of the United States District Court for the Central District of California, issued an 7-page order in the case of POM Wonderful LLC v. Welch Foods, Inc.. This opinion includes, among other things, a discussion of standing under the California Unfair Competition Act and the California False Advertising Act. At the end of the document, the judge writes: “This Order is not intended for publication or for inclusion in the databases of Westlaw or LEXIS.” (emphasis mine)

A quick search of Bloomberg Law dockets produces at least a dozen other orders from this same judge with this same language.

So what about Bloomberg Law.com? Or Google Scholar? Or Fastcase? Justia? May any/all of them include the order?

Or is it just the strength of the Wexis duopoly and the judge really means he does not want the order published online anywhere.

LexisNexis and Westlaw have been the big players for decades. But Google really could be a game-changer. As a review article in the March 8, 2010 issue of The Recorder (“Worthy Adversary”) by Oliver Benn of Google Scholar points out:

If Google wants to devote its resources to addressing its current limitations, the future of legal research could become very different. Many courts accept briefs electronically. Why not hyperlink cited cases in the brief to the cases’ free Google pages?

And getting back to POM Wonderful, apparently it is available in LexisNexis and Westlaw, despite the judge’s request that it not be (please see comment from Bev Butula).